School officials should never refer a child to family court to be placed under an order to attend school prior to “completing the written intervention planning” required by Reg. 43-274(III).
If the intervention plan is not successful and further inquiry by school officials fails to cause the child or parents to comply with the written intervention plan, or if the child or parents refuse to participate in the intervention and the child accumulates two or more additional unlawful absences, the student is considered to be a “habitual” truant. At this point, school officials may determine that the child needs intervention by the family court and may file an initial truancy petition against the child.
The referral must include a copy of the intervention plan and specify any corrective action regarding the child or parents that the district recommends the court adopt. The referral should also specify any other available programs or alternatives identified by the school district.
The written intervention plan and documentation of non-compliance with the plan must be attached to the truancy petition requesting court intervention and served on the child and parents.
If the child continues to accumulate unlawful absences after having been placed under a school attendance order, the child is considered to be a “chronic” truant. At this point, if other community alternatives and referrals fail to remedy the attendance problem, school officials may refer the child back to family court for violating the previous court order. However, the school and district must exhaust all reasonable alternatives prior to petitioning the family court to hold the child or the parents in contempt of court.
Any petition for contempt of court must be accompanied by all school intervention plans existing to this point for the child and family and must include a written report that indicates the corrective actions attempted by the school district, identifies any graduated sanctions or alternatives to incarceration available to the court, and includes a recommendation from the school on action the court should take should the child or parents be found in contempt of court.
Requirements of school officials for referring truant children to court are found in Reg. 43-274(IV).
A child should not be prosecuted for truancy until it has been determined that the parents have met their obligation to keep the child in school. If the parents have not made a bona fide attempt to keep the child in school, the court may proceed against the parents instead of the child. § 59-65-70.
The following is an overview of the process that takes place if a child is referred to family court for violating the compulsory attendance law, is placed under a court order to attend school, subsequently violates that order, and as a result, is referred back to court for violating the order. This process may vary to some degree from county to county.
For a snap shot of the family court process for truancy cases, see the Truancy Case Flowchart.
If a child is referred to family court for violating the compulsory school attendance law, the child and the parents will be required to appear before the family court judge on a specified date for the initial truancy hearing. At this hearing, the judge will usually place the child and parents under a school attendance order. The judge will also explain that if the child accumulates any additional unlawful absences, the child could be brought back to court and may be committed to a DJJ institution.
If the child complies with the court order, there will be no further intervention by the court. However, if the child violates the court order, the child may be charged with contempt of court and required to return to the family court.
If the child is charged with contempt of court, the child and the parents will be notified in writing of the date and time they are scheduled for intake with the DJJ community specialist at the local DJJ county office. The role and function of intake is to independently assess the circumstances and needs of children referred for possible prosecution in the family court. § 63-19-1010(A).
During the intake process, the DJJ community specialist will collect background information from the child and the parents, ask the parents to sign releases for school and medical records, and explain the court proceedings to the child and the parents. The information gathered at intake, along with school records, past involvement in the juvenile justice system, and other available information, will be used by the DJJ community specialist to make a recommendation to the solicitor as to whether or not to prosecute and to the court for its consideration and determination of the disposition of the case. § 63-19-1010(A).
The child or the child’s parents will receive written notice requiring them to appear in family court at a specified time for the court hearing. Since the contempt of court hearing may result in commitment to a DJJ institution in which the child's freedom is curtailed, the child or the parents must be given written notice of the factual allegations that will be considered at the hearing. § 63-19-1030(D). The notice must be given as soon as practicable and sufficiently in advance to permit preparation for the hearing. The notice must also advise the child or the parents of their right to be represented by an attorney and that, if they are unable to hire an attorney, an attorney will be appointed to represent them.
Once appointed or hired, the child’s attorney will set up an appointment to meet with the child and the child’s parents to prepare for the court hearing. The attorney will explain the court proceedings to the child and parents and prepare any available defenses to the contempt of court charge.
The following individuals will be present at the contempt hearing: the child, the child’s parents, the child’s attorney, the prosecutor, school officials, the DJJ community specialist, and the judge.
Juveniles are afforded many of the due process rights afforded to adults in criminal trials, including the right to written notice of charges, right to counsel, right to confront evidence and cross-examine witnesses, and the privilege against self-incrimination. In re Gault, 387 U.S. 1 (1967). The child and parents must be expressly informed of their right to be represented by an attorney and must be specifically required to consider whether they do or do not waive that right. § 63-19-1030(D).
The child has the option of either admitting to being in willful violation of the court order and pleading guilty to contempt of court or requesting a trial. In either situation, the juvenile case is processed in two phases: (1) the adjudicatory phase where the court determines if the child is guilty or not guilty, and (2) the dispositional phase where the court imposes its sentence or disposition if the child was found guilty. Following the adjudication, the judge may proceed directly to disposition and sentence the child, or the judge may order that the child undergo an evaluation in which case the disposition hearing will be set for a later date. (For an explanation of post-adjudicatory evaluations, see below.)
If the child enters a guilty plea:
- The prosecutor will read out the petition and indicate to the judge that the child wishes to plead guilty.
- The judge will then ask the child a series of questions to ensure that the child is aware of his or her due process rights, understands the implications of pleading guilty, and is pleading guilty freely and voluntarily. The judge will then make a ruling as to whether or not he or she accepts the guilty plea.
- If the judge accepts the child’s guilty plea, the DJJ community specialist may be asked to read the child’s school records (grades, attendance, and disciplinary), report on the child’s prior court history and behavior in the home (as reported by the parents), and make a recommendation to the court for its consideration and determination of the disposition of the case.
- The prosecutor will also make a recommendation to the court and may ask the judge to hear from the school attendance officer involved in the case.
- The child’s attorney will speak on the child’s behalf, explain any mitigating circumstances, and present a recommendation for the judge to consider.
- The judge may ask further questions of the child or the child’s parents.
- The judge may then impose its sentence, order an evaluation, or order other instructions as deemed appropriate. (See below for a list of possible family court dispositions.)
If the child does not plead guilty and goes forward with a trial, the judge will hear all the evidence presented at the trial and determine whether the child is guilty or not guilty.
If a child is determined to be guilty, whether by a plea or trial, a disposition hearing will be held. The disposition may immediately follow the adjudication or be scheduled at a later date after any court ordered evaluation has been completed. When determining the sentence at the disposition hearing, the judge will consider evaluation reports, seriousness of the charge, school records, the child’s behavior at home, special needs and disabilities of the child, and the child’s prior court history.
If a child is adjudicated delinquent (i.e., found guilty) for violating a previous court order, the family court judge will make a ruling as to what the sentence or “disposition” should be for the child. The dispositional powers of the family court are authorized by § 63-19-1410, § 63-19-1420, and § 63-19-1440. The following is an overview of the more common dispositions ordered for children adjudicated delinquent for violating a court order:
After a child is adjudicated delinquent, the presiding judge may order the child to undergo an evaluation prior to sentencing. If an evaluation is ordered, the disposition hearing will be set at a later date, pending completion of the evaluation. The judge may order the child to undergo either a community evaluation or a residential evaluation.
- If ordered to undergo a community evaluation, the child will remain at home or in a suitable alternative placement for the evaluation period, which is usually 40 to 90 days. The child will visit the DJJ county office and meet with a psychologist who will administer a series of tests. An evaluator will also gather background information from the child’s parents and interview the child. This information will be compiled into a single report that is submitted to the judge prior to the disposition hearing. The child is under the authority of the court during the evaluation period, and if the child violates the terms and conditions of the community evaluation, the child may be sent to a DJJ institution for a residential evaluation.
- If ordered to undergo a residential evaluation, the child will be sent to a DJJ Reception and Evaluation center for up to 45 days. The child will receive a physical, meet with a psychologist, take a series of tests, and attend school Monday through Friday. The teachers, the assigned social worker, the psychologist, and the residential staff will each report on the child. The social worker will interview the child’s parents in person or by telephone. This information will be compiled into a single report that is submitted to the judge prior to the disposition hearing.
- Probation is a sentence that releases an adjudicated child into the community, subject to stated conditions, instead of committing the child to a DJJ institution.
- The judge may place a child on probation for any amount of time, up until the child’s 20th birthday. § 63-19-1410(A)(3).
- “Probation must not be ordered or administered as punishment but as a measure for the protection, guidance, and well‑being of the child and the child’s family. Probation methods must be directed to the discovery and correction of the basic causes of maladjustment and to the development of the child’s personality and character, with the aid of the social resources of the community.” § 63-19-1410(A)(3).
- The judge may order various conditions of probation including regular school attendance; participation in a community mentor program; cooperation with a referral to individual or family counseling, drug or alcohol counseling, or inpatient treatment; participation in community service; abiding by a set curfew; and cooperation with other restrictions or conditions the court may deem appropriate.
- The judge may suspend or restrict a child’s driver’s license until the child is 18 years old. .§ 63-19-1420(A)
- If the court suspends a child's driver's license, the child must submit the license to the court, and the court shall forward the license to the Department of Motor Vehicles (DMV) for license suspension. § 63-19-1420(C)
- If the court restricts a child's driver's license, the court may restrict the child's driving privileges to driving only to and from school or to and from work or as the court considers appropriate. Upon the court restricting a child's driver's license, the child must submit the license to the court and the court shall forward the license to DMV for reissuance of the license with the restriction clearly noted. § 63-19-1420(D)
- A child, who is at least 12, may be committed to a DJJ correctional institution or
to a secure evaluation center operated by DJJ for a determinate period not to exceed
ninety days when:
- the child is in contempt of court for violation of a court order to attend school.§ 63-19-1440(F)(2).
- the child is determined by the court to have violated the conditions of probation set forth by the court in an order issued as a result of the child's adjudication of delinquency for truancy.. § 63-19-1440(F)(3).
- The commitment order must acknowledge that the child has been advised of all due process rights afforded to a child offender and that the court has received information from the appropriate agency that has reviewed the facts and circumstances causing the child to be before the court.
- A child committed for a determinate period may not be confined with a child who has been determined by DJJ to be violent. § 63-19-1440(G).